Central Administrative Tribunal - Chandigarh
Parvinder Singh Saini vs Union Of India & Others Respondents on 16 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
REVIEW APPLICATION NO. 10 / 2010 IN
ORIGINAL APPLICATION NO.452-CH-2009
(CWP No.18429 of 2006)
Chandigarh, this the 16th day of November, 2010
CORAM: HONBLE SMT. SHYAMA DOGRA, MEMBER (J)
HONBLE MR.KHUSHI RAM, MEMBER (A)
Parvinder Singh Saini APPLICANT
VERSUS
Union of India & Others RESPONDENTS
Present : Dr. Balram Gupta, Sr. Advocate with
Ms. Anamika Negi, Advocate.
Mr. Deepak Sibbal, Advocate with
Mr. Saurav Verma, Advocate.
ORDER
HONBLE MR.KHUSHI RAM, MEMBER(A):
The Applicant had filed C.W.P. No. 18429 of 2006 which on transfer to this Tribunal was registered as T.A.No. 52-CH-2009 praying for quashing the Recruitment rules for the post of Superintending Hospital Engineer notified vide office order dated 28.6.2006 (Annexure P-23) in which a person holding Degree in (Electronics) was made ineligible and for quashing the order / letter dated 1.2.2006 (Annexure P-22) sent by Government of India, Ministry of Health & Family Welfare, New Delhi by which the qualifications to be mentioned in the rule were mentioned i.e. Degree in Civil / Electrical Engineering thereby leaving out a candidate holding Degree in Electronics as ineligible. A direction was sought to the respondents to treat a person with Bachelor of Engineering (Electronics) degree eligible for the post of Superintending Hospital Engineer.
2. The case filed by the applicant was dismissed vide order dated 18.12.2009 upholding the validity and legality of the recruitment rules.
3. Now the applicant is before us in the instant Review Application claiming that the order passed by this Tribunal is liable to be reviewed. He has cited judgment rendered in the case of S. Nagaraj & Ors. Vs. State of Karnataka & Another, (1993)5 SLR 1, reflect the power of review vested in a court of law. It is stated that the Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice. The applicant has claimed that there are number of error apparent on the face of record and the same are substantial in nature causing miscarriage of justice to the applicant.
4. The applicant has submitted that in para 2 of the judgment it has been mentioned that However, the action of the respondents, according to the Applicant, is violative of Articles 15 and 16 of the Constitution of India. He has submitted that applicant never alleged violative of Article 15 of the Constitution. This indeed is a minor typographical error which needs to be corrected. Then it has been recorded in para 2 that The applicant has alleged that amendment to the Rules for the post of Superintending Hospital Engineer was carried out on account of lack of mature / experienced staff in the respondent PGI who may be suitable for promotion. This also requires to be amended as the plea is based on Agenda Item No. 49 (Annexure P-18) recommendation of Cadre Review Committee. Thus, the above lines would be replaced with the words The applicant has alleged that a perusal of the Agenda Item No. 49 would reveal that the respondent-P.G.I. was per force required to take the services of officers against inter-alia, the post of Superintending Hospital Engineer on deputation as experienced persons to hold such senior / responsible posts were not available.
5. The observations in para 3 that Trauma Centre and New OT Complex vide letter dated 8.11.2000 on the repatriation of the then Superintending Hospital Engineer to his parent Department gives an impression that applicant was given charge only on repatriation of then Superintending Hospital Engineer, whereas the applicant was given charge from time to time. Thus, the same is to be replaced with the observations The applicant has been supervising the works of Electrical, Biomedical and Air-conditioning wings since 1995 and has monitored major Civil Projects of Advanced Eye Centre, Advanced Cardiac Centre, National Institute of Nursing Education when he was deputed to assist Professor Dash while functioning as Superintending Hospital Engineer (P-8). As Professor Dash was not an Engineer, all Technical decisions were taken by the petitioner (P-9). It is stated that in para 9 certain observations made by this Tribunal are also factually wrong. However, we find that the Bench has mentioned only the stand taken by the respondents in their reply at pages 224-225. The same does not require to be reviewed. The bone of contention is that on the one hand applicant pleads that Biomedical Services are quite necessary and he has mentioned certain notices / letters to prove this fact whereas respondents state that the maintenance of equipment etc. are by and large out sourced thus rendering the service of the applicant branch of specialization as redundant. Again the Bench has mentioned view point of the respondents about applicant having no expertise in civil work which is also sought to be reviewed. The same obviously is not an error as both the parties are free to state their side of the case. The applicant has taken great pains to state that he has substantial experience. The sentence that PGI needs a Civil Engineer for the highest position of SHE is also a stand taken by respondents. The applicant has pleaded that it is not correct to say that PGI needs a Civil Engineer for the post of SHE. He argues that it is not understandable as to why SHE should be only a Civil Engineer more so when Prof. R.J. Dash was not a Civil Engineer or not even an Engineer. The observation made in para 9 that an Electronic Engineer can know the weight of the equipment but cannot tell what load of the equipment can building take/ sustain and what magnitude of vibration can transfer to building, also is not required to be reviewed.
6. In so far as observation that applicant earned more than two promotions is concerned, let it be stated that this is an error as the applicant was indeed appointed as a direct recruit on 25.9.1992. The observation that The applicant entered service of the respondent Institute with his eyes wide open also need no review as applicant was aware about the existence of rules at that time. Again contention of respondents that He is likely to superannuate on 20.02.2023 and Institute like PGI cannot be left to the mercy of an Electronic Engineer like the Applicant for its up-gradation and revamping to deliver in 21st century for over a decade is stated with a mention that the same has not been repelled as the applicant, in his field is nationally and internationally known. The record / pleadings bear testimony to the same. It is stated that no comparison can be done with regard to the State Government Engineering Departments with that of PGIMER. The applicant has taken objection to use of term Applicant alleged that Respondent No. 1 referred the matter to Respondent No. 2. It is a statement of fact only and the word alleged has been used for subsequent allegation of in the malafide manner with a view to exclude applicant. Referring to findings recorded in para 17, it is submitted that the same is factually wrong. The applicant in the guise of the present Review Application has in-fact sought re-hearing of the entire matter all over again. In the beginning he has stated that there are certain errors apparent which have substantially resulted in miscarriage of justice. We do not find any error of substantial nature causing miscarriage of justice. The errors are in the nature of clerical or typographical in nature and would not have any effect on the final order. It has been held in the case of S. Nagaraj (supra) relied upon by applicant himself that power under review is exercised to remove the error and not for disturbing finality. The applicant has time and again tried to project that the rules framed by the Executive do not meet his expectations and as such need to be modified in terms of recommendations of the Cadre Review Committee and Ministry of Health has no power and authority to interfere in the decisions taken by the Governing Body of PGI. We have already held in our decision that the Courts or Tribunals are not expected to indulge in framing of recruitment rules as the same is a policy matter.
7. Except for minor typographical errors as discussed above and on a perusal of the material available on the record, we find that this Review Application is without any merit and deserves to be dismissed as such as the factual and legal issues raised in the Original Application and other pleadings by the parties were taken note of and decided accordingly. A perusal of the R.A. would reveal that the applicant has basically prepared the case as if he wants to challenge the order of the Tribunal in a superior court. There is no error apparent on the face of the record warranting review of the order on merit of the case.
8. In Smt. Meer Bhanja v. Smt. Nirmala Kumari Choudhury, AIR 1995 SC 455, it has been observed by the Apex Court that the Review Court should not act as Appellate Court and the error apparent on the face of the record contemplates that genre of errors which strikes one on a mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. Similar views have been expressed in Parsion Devi and Others v. Sumitri Devi and Others, 1997(8) SCC 715. It was held that a mistake or error apparent on the face of the record is one which is self-evident and does not require a process of reasoning; distinct from an erroneous decision. A rehearing in the matter for detecting an error in the earlier decision and then correcting it does not fall within the ambit of review jurisdiction.
9. In the case of Board of Control for Cricket, India and Anr. v. Netaji Cricket Club and Ors., 2005 (1) Decisions Today (SC) 35, the Honble Supreme Court while dealing with the aspect relating to review, has crystallized the position as under : -
"Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason "Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "a sufficient reason" on Order 47 Rule 1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravait".
10. In Lily Thomas v. Union of India, AIR 2000 SC 1650, the Honble Supreme Court while considering the scope of Order 47, Rule 1 CPC held that the dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. The power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. In Inderchand Jain (Dead) through LRs Vs. Motilal (Dead) through LRS, (2009) 14 SCC 663 it was held that review is not appeal in disguise. Review Court cannot sit in appeal over its own order and rehearing of the matter is impermissible in law. Review is exception to general rule that once a judgment is signed or pronounced, it should not be altered. The Courts should not invoke their inherent jurisdiction for reviewing any order. Similarly in State of W.B. V.Kamal Sengupta, (2008) 8 SCC 612, it was held that since the Tribunals power to review its order / decision is akin to that of the civil court, statutorily enumerated and judicially recognized limitation on the civil courts power to review its judgment/ decision would also apply to the Tribunals power under section 22 (3) (f) of the Act. A Tribunal established under the Act is entitled to review its order only if either of the grounds enumerated in order 47 Rule 1 CPC are available. Tribunal can review its order on the discovery of new or important matter or evidence which the applicant could not produce at the time of initial decision despite exercise of due diligence or the same was not within his knowledge or if it is shown that the order sought to be reviewed suffers from some mistake or error apparent on the face of the record or there exists some other reason, which in the opinion of the Tribunal, is sufficient for reviewing the earlier order / decision.
11. In so far as legality and validity of the rules is concerned, we would like to refer to the decision in the case of Captain B.D. GUPTA v. STATE OF U.P. AND ANOTHER 1991 Supp (1) SCC 1, in which the Honble Supreme Court held that rules made under Article 309 of the Constitution are a piece of legislation and it is well settled that no legislation can be challenged on the ground of mala fides. Similarly, in V.K. SOOD v. SECRETARY, CIVIL AVIATION AND OTHERS (1993 Supp. [3] SCC 9), the Honble Supreme Court has observed as follows:
Thus it would be clear that, in the exercise of the rule making power, the President or authorized person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to an office or a post under the State. The rules thus having been made in exercise of the power under proviso to Article 309 of the Constitution, being statutory, cannot be impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal. Suffice to state that it is settled law that no motives can be attributed to the Legislature in making the law. The rules prescribed qualifications for eligibility and suitability of the appellant would be tested by the Union Public Service Commission.
12. In ASHOK KUMAR UPPAL v. STATE OF J&K (1998) 4 SCC 179, the Honble Supreme Court held as under:
Power to relax the Recruitment Rules or any other Rule made by the State Government under Article 309 of the Constitution of which the corresponding provision is contained in Section 124 of the Constitution of Jammu and Kashmir, is conferred upon the Government to meet any emergent situation where injustice might have been caused or is likely to be caused to any individual employee or class of employees or where the working of the Rule might have become impossible. Under service jurisprudence as also the Administrative Law, such a power necessarily to be conceded to the employer particularly the State Government or the Central Government who have to deal with hundreds of employees working under them in different departments including the Central or the State Secretariat.
13. In ASHUTOSH GUPTA v. STATE OF RAJASTHAN (2002) 4 SCC 34, the Honble Supreme Court in paragraph 5 of the judgment has held as under :
There is always a presumption in favour of the constitutionality of enactment and this presumption stems from the wide power of classification which the legislature must, of necessity possess in making laws operating differently as regards different groups of persons in order to give effect to policies. It must be presumed that the legislature understands and correctly appreciates the need of its own people, that its law are directed to problems made manifest by experience.
14. In P.U. JOSHI AND OTHERS v. ACCOUNTANT GENERAL, AHEMEDABAD AND OTHERS (2003) 2 SCC 632, the Honble Supreme Court held as under :
Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotion and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. There is no right in any employee of the State to claim that rules governing conditions of his service for all purposes and except for ensuring or safeguarding rights of benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service
15. We find that no ground, whatsoever, has been made out for review of the order dated 18.12.2009 on merits of the case nor same is permissible. The applicant is basically trying to re-argue the case all over again that too on issue which already stands settled. The pleas taken by him do not fall within the limited scope of review provided under Order 47, Rule 1 of the Code of Civil Procedure, 1908 read with the provisions of Section 22 (3) of the Administrative Tribunals Act, 1985 and as such no review of the order in question is called for. The applicant has failed to make out any point which may convince us to take a different view than the one already taken in the given facts and circumstances of the case.
16. For the aforesaid reasons, this Review Application is dismissed under rules of circulation. No costs.
(KHUSHI RAM) (SHYAMA DOGRA)
MEMBER (A) MEMBER (J)
Place: Chandigarh.
Dated: November 16, 2010
HC*
1. With due respect to the opinion expressed by the Honble Member (A), I want to disagree (except on the point of one correction of typographical errors) with the same on the following grounds: -
2. First point which needs consideration is whether this Court can review its earlier order and is there any error apparent on the face of the record. In my considered opinion, this Court has over looked, rather over-sighted the legal aspect of the matter with regard to the prayer of the applicant to consider his case for promotion to the post of Superintending Hospital Engineer (SHE) by bringing about the amendment in the rules which were in fact amended in the shape of draft rules after an undertaking by the respondents in the Contempt Petition filed by the applicant in the Honble High Court of Punjab & Haryana.
3. It is a matter of record that the applicant was appointed as a Hospital Engineer (Bio-Medical) on direct recruitment basis vide order dated 25.9.1992 and as on date also he is still working as such, without getting any promotion at all. He filed a C.W.P. No. 3966 of 2003 before the Honble High court of Punjab and Haryana which was decided on 16.12.2004. Taking note of the stand of respondents that the matter is under consideration of the Cadre Review Committee in which the petitioner had represented for opening channels for promotion from the post of Hospital Engineer (HE) to the post of Superintending Hospital Engineer (SHE in short) and that the competent authority to bring about the amendment is the Institute Body which was to act on the recommendations made by the Cadre Review Committee, the Cadre Review Committee was directed to finalize its recommendations for the post of Superintending Hospital Engineer within a period of four months and recommendation were to be forwarded to the Institute Body who was to take a final decision thereon. In this case admittedly the Cadre Review Committee took a decision in favour of the category of the applicant to include the post of Hospital Engineer in feeder cadre for promotion to the post of Superintending Hospital Engineer. The matter was then referred to the Central Government for approval. But the Central Government did not accept the recommendations of the respondent Institute and decided for exclusion of the category of the applicant from the consideration zone. This had resulted in applicant filing a second Writ Petition.
4. The Respondent i.e. the Central Government while amending these Rules have excluded the category of the applicant from the feeder cadre to be eligible for consideration for promotion to the post of SHE. The Cadre Review Committee had duly recommended the category of the applicant (Electronics) to be added in the feeder cadre for promotion to the post of SHE, while making recommendations for amendment of the relevant rules, wherein prior to filing of C.W.P. by the present applicant, there was no promotional avenues and the persons from outside were used to be taken on deputation basis. Even under old Rules of 1982, there were no promotional avenues for the category to which applicant belongs which compelled him to approach the Court of law by filing C.W.P.
5. When new Amended rules were framed and notified after giving an undertaking in the Honble High Court of Punjab and Haryana, mode of appointment to the post of SHE was provided as, by promotion / deputation failing which by direct recruitment. Educational and other qualifications which were required for direct recruitment were also required to be possessed in the case of promotion. The educational and other qualifications as prescribed under these Rules are Degree in Civil / Electrical Engineering with 12 years of professional experience out of which at last 5 years should be in project management. As is seen, only the category of Civil & Electrical Engineers is included in feeder cadre for promotion to the post of SHE & category of the Electronics has been excluded. If we agree with the contention of the Respondents that there are number of projects, in which construction is going on in the Institute and they need SHE from Civil Engineering category, then there was no need to include category of Electrical Engineer in the Rules.
6. It is reemphasized at the cost of repetition that the Cadre Review Committee has recommended that a person with degree in Engineering in the branches of Civil, Mechanical, Electrical and Electronics with experience of 13 years of service out of which not less than 7 years in the regular grade of Executive Engineer, in the rules to be included in feeder cadre for promotion to the post of SHE but the Central Government without assigning any reasons has not included this category in the rules for promotion to the post of SHE. Undoubtedly, it is for the Central Government to give approval to the recommendation of the Cadre Review Committee for amendment of the rules but if a particular proposal was not to be approved, it was incumbent upon the competent authority to give reasons as to why this category is being excluded from feeder cadre for consideration for promotion to higher post more so when it is on the directions of the Honble High Court that the proposal for amendment of the rules was set in motion.
7. In my considered opinion the action of the respondents in excluding the category of the applicant from feeder cadre for promotion to the higher post of SHE amounts to violation of the fundamental right of the applicant and other incumbents of this category working with the respondents for consideration for promotion to the post in question and their action is violative of Articles 14 and 16 of the Constitution of India. It is a sheer case of discrimination against the applicant and it is against the mandate of the law of the land more so when every employee has a fundamental right for consideration of his case for promotion to higher post as per the Rules. But if the rules do not provide for such right, the authorities are bound to frame the rules in accordance with the spirit of the Constitution of India that every employee has a right to be considered for promotion.
8. In fact the applicant was the pioneer to come forward and make a request by way of filing a C.W.P. in the High Court for amendment of the rules to make available promotional avenues for the employees working in the Institute with prescribed educational qualification of Degree in Electronics as under the old rules, the deputation was the first mode of recruitment for appointment to the post of SHE in the Institute which obviously debarred the avenues of promotion for the category of the applicant. Therefore, in my considered opinion there is an error apparent on the face of the order as Court has ignored this aspect of the matter and rejected the Original Application. Even after up-holding the Rules, some directions could have been issued to the authorities to make some provision in the rules for providing promotional avenues for the category to which the applicant belongs.
9. The Honble Supreme Court of India in Writ Petition (Civil) No. 509 of 1997 & Writ Petition (Civil) No. 108 of 1999 titled RUPA ASHOK HURRA Vs. ASHOK HURRA & ANR, decided on 10.4.2002 has considered the principles of review thread bare. After considering number of decisions on scope of review by a court of law in case there is manifest illegality and palpable injustice including decision in the cases of The Keshav Mills Co.Ltd. vs. Commissioner of Income-Tax Bombay North [1965 (2) SCR 908], as followed by the Honble Apex Court in Maganlal Chhaganlal (P) Ltd. vs. Municipal Corporation of Greater Bombay & Ors. [1974 (2) SCC 402] and in the case of The Indian Aluminium Co.Ltd. vs. The Commissioner of Income-tax, West Bengal, Calcutta [1972 (2) SCC 150] it has been held that the power of review has to be exercised sparingly. When the power of review is very limited and circumscribed in view of law laid down in the cases of Cauvery Water Disputes Tribunal [1993 Suppl.(1) SCC 96] and in S.Nagaraj & Ors. vs. State of Karnataka & Anr. [1993 Suppl.(4) SCC 595] and in Ramdeo Chauhan vs. State of Assam [2001 (5) SCC 714] and in Lily Thomas & Ors. vs. Union of India & Ors. [2000 (6) SCC 224]. However, in S. Nagaraj's case (supra), it was held that "Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice.
10. The Apex Court has further held that Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. It was further held that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment should not be open to challenge yet there may be circumstances, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice. Ultimately, the Court held that to prevent abuse of its process and to cure a gross miscarriage of justice, Court may re-consider its judgments in exercise of its inherent power. In Lily Thomass case (supra) Honble Apex Court has categorically mentioned the meaning of Review is the act of looking after something again with a view to correct or improve. It can be exercised for correction of a mistake and not to substitute a new. In the present case, this Court is to correct the mistake with regard to claim of the applicant for making provision for promotional avenues and not to substitute its own view whereby the validity of statute was upheld.
11. Undoubtedly it is for the competent authority to lay down eligibility criteria and mode of recruitment to a particular post and courts should not sit in appeal over wisdom of the administrative authorities, I am of the opinion that fact still remains that even though promotion may not be a condition of service but certainly one cannot lose sight of the fact that one has a right of consideration for promotion. The question arises as to whether the Government or respondent Institute can act in the manner it has done in this case by totally excluding the category of the applicant from consideration zone. The Honble Supreme Court in State of Tripura & Others Vs. K.K. Roy (2004) 9 SCC 65, has held as under:-
6. It is not a case where there existed an avenue for promotion. It is not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its Constitutional obligations enumerated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue for promotion, he cannot resile there from. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of the State.
12. In Dr. Ms. O.Z. Husain V. Union of India, AIR 1990 SC 31, considering stagnation of Group A Scientist in non-medical wing in Directorate of Health Service, I was held by their Lordships as follows :-
7. This Court has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces and makes the services ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical A Group Scientist in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the A1 category scientists in the non-medical wing of the Directorate.
13. The Honble Supreme Court in a number of cases has found the right of promotion to be included, as a fundamental right, under Article 16 of the Constitution of India. The State as such must provide the avenues of promotion to the person serving on same post and in same pay scales for long period of time. Whenever, promotional avenues are not available the stagnation can be avoided by providing a time bound promotional pay scale, selection grade, super time scale or any other benefit of upward movement but these substitutes can not take away right of the applicant for regular promotion as even the ACP/MACP Scheme of the Central Government contains a clause that even after provision of financial up-gradations, efforts should be taken to provide for promotional avenues to the employees. The State or Central Government cannot ignore a cadre in a service created by a statutory service rules and to discriminate them by failing to provide any promotional avenues, violating Article 14 of the Constitution of India as every one is entitled to equal protection of laws. It has, however, been cautioned that Courts may not suggest the measures by which such discrimination violating Article 14 and 16 may be removed. It is for the Governments / authorities to provide and frame a set of appropriate rules.
14. In the case of Netai Bag and Ors. V. State of West Bengal and Others (2000) 8 SCC 262, the Honble Supreme Court has re-affirmed fairness in executive action in the following words:-
17. It has been consistently held by this Court that in a democracy governed by the rules of law, the executive Government or any of its officers cannot be allowed to possess arbitrary powers over the interests of the individual. Every action of the Executive Government must be in conformity with reason and should be free from arbitrariness. The Government cannot be equated with an individual in the matter of selection of the recipient for its largesse. Dealing with the limits on the exercise of executive authority in relation to rule of administrative justice, Mr. Justice Frankfurter in Vitarelli v. Seaton (359 US 535) said: An execution agency must be rigorously held to the stands by which it professes its action to be judged.. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.
15. That in the case of Onkar Lal Bajaj and Or. Vs. Union of India & Another (2003) 2 SCC 673, the Honble Supreme Court reiterated the position in the following words :-
36. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to based on transparency but must create an impression that the decision making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice equity and fair play and has taken into consideration other matters of fact, the reasons are not based on values but to achieve popular accolade that decision cannot be allowed to operate.
16. Despite the fact that the Cadre Review Committee recommended for inclusion of post of the applicant in consideration zone for promotion to the post of SHE and the proposal on that line was sent by the Institute to the Central Government for approval but the Central Government, it appears that being totally oblivious of the theory of promotional avenues in the service jurisprudence excluded the category of the applicant without giving any reason and the same surprisingly was accepted by the Institute ignoring its own recommendations. The Central Government on the face of it has adopted a totally indifferent attitude for the promotion of a particular category of employees despite the fact that the applicant had approached the Honble High court for providing him promotional avenues. It is not in dispute that in other categories, the respondents have made provision for promotional avenues and as such it can safely be inferred that there has been discrimination against the applicant and unfair treatment towards category of applicant in the matter of promotion, which amounts to infringement of fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. Thus, ignoring this aspect of the matter while deciding the Original Application, is an error apparent on the face of the record and needs correction as it is not understandable as to why a particular category is excluded in the Rules from consideration for promotion to the higher post that too without assigning any cogent reasons. We fail to under stand the object sought to be achieved by the action of the respondents when they have failed to explain as to why Degree in Electrical Engineering was added if they have more work on Civil Side in the Institute as compared to branch of Electrical and Electronics. Though both of these categories are equally important in their respective fields. If the object was to include only a Degree in Civil Engineer, there was no occasion for inclusion of these two branches and exclusion of only Civil Branch. This clearly shows non-application of mind on the part of the authority while approving the rules. The same appears to have been approved in a most mechanical manner.
17. We have also taken judicial notice of the order recently passed by this Court in the case of Mrs. Achla Dogra and Others Vs. Union of India & Others, O.A.No.998-CH-2009 decided on 12.10.2010 wherein, the non-Ph.D Lecturers who have been working in the College in U.T. Chandigarh for the last more than 30 year were deprived of their right for consideration for the post of Principal, while prescribing Ph.D as requisite educational qualification for the post of Principal. This Court in similar circumstances has held as follows :
35. In view of the above, we uphold the validity of the Govt. Arts & Science Colleges, Chandigarh (Principal) Group A Posts) Recruitment Rules, 2010 (for short the Rules of 2010). However, we also feel that it is against all the principles of service equity that Lecturers in the Respondent Organization would have no avenue of promotion throughout their career, since at the time of recruitment, the holding of a Ph.D degree was not a pre-requisite for being appointed to the post of Lecturer. The present provision would give rise to stagnation and it has been well accepted in service jurisprudence that it is the duty of the employer to provide some avenues of promotion to its employees. Therefore, we direct the respondents to consider amending the rules within a reasonable period of time insofar as they relate to promotion to the post of Principal, so as to make a provision at least up-to some percentage for promotion of those Lecturers to the post of Principal for whom Ph.D was not qualification at the time of recruitment and who have put in a substantial number of years in service..
18. The respondents have vehemently contested this Review Application particularly maintainability of the same on the ground that if plea of the applicant is accepted, it would amount to re-hearing of the case, as if this court is sitting in appeal over its own decision which is not permissible. Learned counsel for the respondents have supported their plea while referring to decisions in the cases of Inder Chand Jain Vs. Moti Lal (2009) 14 SCC 663, and State of West Bengal Vs. Kamal Sen Gupta, 2008 (8) SC 612
19. It is also contended by the learned counsel for the Respondents that even under the old Rules, there was no provision for promotion from the category to which the applicant belongs and he had joined the Department fully knowing that he would not get any further promotion avenues under the Rules.
20. All these contentions of the respondents are however not accepted for the reasons and discussions made in the preceding paras as this Court, while passing the order under review has certainly over looked the provisions of the Constitution of India and mandate of the Honble Supreme Court that every employee has a right to be considered for promotion. So it would not amount to re-hearing of the matter or substitution of its earlier view but it would just be a case of correction of mistake which occurred due to over- sight.
21. It is thus apparent that there is no absolute bar in reviewing a decision to impart substantial justice to an aggrieved person and this is a case where the power of review is required to be exercised in favour of the applicant to review the order to the extent that directions are issued to the respondents to make suitable amendment in the rules while making some promotional avenues for the category of Hospital Engineer having Degree in Electronics, to the post of SHE as was recommended by the Cadre Review Committee. Needful be done within a period of six months from the date of receipt of copy of this order. Typographical mistakes also stand corrected. Needless to say that we have already upheld the validity of the Rules and that part of the order will remain as it is. Ordered accordingly. In terms of these observations and directions as above, this O.A. stands disposed of. No costs.
(SHYAMA DOGRA) MEMBER (J) Dated: 16.11.2010.
ORDER In view of the fact that there is difference of opinion two of us on the Review of the order in question to the extent mentioned above, let this matter be referred by the Registrar for placing it before the Honble Chairman for referring it to a Larger Bench. The questions of law for consideration for Larger Bench are:
i) As to whether once an Original Application containing challenge to the Recruitment Rules has been dismissed on merits, can the Tribunal in exercise of power of review under Section 22(3) (f) of the Administrative Tribunals Act, 1985 while upholding the legality and validity of the Rules, issue direction to the respondent department to re-consider amendment of the rules to make a provision for promotional avenues to the category to which applicant belongs i.e. Hospital Engineer?
ii) As to whether this Tribunal while disposing of the Original Application over looked the concept of consideration for promotion as a right flowing from Article 14 and 16 of the Constitution of India and due to this mistake the order is required to be reviewed so as to issue a direction to the respondents to reconsider the matter of amendment of the Recruitment Rules so as to make a provision for promotional avenue for the category of the applicant?
(KHUSHIRAM) (SHYAMA DOGRA)
MEMBER (AS) MEMBER (J)
29
(R.A.No. 10 of 2010 in
T.A.No. 452-CH-2009
CWP No.18429/2006))